← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Sneak Preview: SCOTUS Apparently Doesn’t Believe Trans People Exist
00:11:11
What just happened to equal protection under the law?
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- [00:09]
Dahlia Lithwick
Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwick. On Wednesday morning, the Supreme Court finally issued its decision in United States vs Skremetti. In a 6 to 3 opinion, Chief Justice John Roberts held that Tennessee's law banning gender affirming care for transge minors did not violate the Constitution's equal protection clause by discriminating on the basis of sex or transgender status. In so doing, the high court greenlit similar laws in over 20 other states. We are releasing this bonus episode as part of our Opinion Palooza coverage of the intense end of the term at the high court. And while this outcome in scrimmity was probably not a surprise for those of us who listened in on oral arguments last fall, it is never, nevertheless just an utterly devastating blow for trans rights in a political climate that has featured an all out assault on transgender Americans since Donald Trump took office. Mark Joseph Stern is here to talk about the holding in this case and how the justices voted and how they wrote. Hi there, Mark.
- [01:24]
Mark Joseph Stern
Hi Dalia.
- [01:26]
Dahlia Lithwick
Over the last couple of years, we've witnessed a really sweeping assault on transgender rights that, as the ACLU's Chase Strangio warned us in a conversation we had with him over a year ago, was highly coordinated and highly centralized and well planned, empowered by a conservative judiciary and especially turbocharged. After the Dobbs decision, red states started to declare sweeping new authority to regulate, quote, experimental medicine and they started to outlaw care for trans minors. Tennessee is just one of those states. Can you just remind us what the legislature enacted in this case?
- [02:08]
Mark Joseph Stern
Yeah. So the legislature here passed a law, copied and pasted from many other states that prohibits minors from receiving the full range of gender affirming care as relevant here, puberty blockers and cross sex hormones. So trans children cannot in the state be prescribed or provided puberty blockers for gender dysphoria to delay puberty or cross sex hormones to allow them to resolve their gender dysphoria by living as the gender that they feel themselves to be. As we'll discuss, and I want to make this clear at the outset, these treatments are pretty common and were not outlawed for other purposes. So children who have precocious puberty, children who have hirsutism or other conditions or anomalies that require these kinds of treatments, they can still get them as long as they are not transgender and are not trying to transition to a sex other than the one assigned at birth.
- [03:11]
Dahlia Lithwick
And this was always the sticky wicket. How you get out from under the fact that this is not discrimination on the basis of sex. We're going to get there in a second, but can you just sketch out for us what Chief Justice John Roberts, writing for the majority decided in this case? And particularly, I think it would be useful for you to help us understand how he got us to the place where this was reviewed using the lowest level of constitutional scrutiny, what we call rational basis review, which almost always survives.
- [03:45]
Mark Joseph Stern
Yeah, I mean, so I think anyone who knows anything about constitutional law would have a red light go off based on what I just said and say, wait a minute. It sure sounds like Tennessee and all these other states are targeting people at least on the basis of transgender status, if not directly on the basis of sex. You know, a boy who is assigned male at birth can receive puberty blockers for precocious puberty, but a child assigned male at birth who is transgender, who wants to delay puberty because they believe themselves to be a girl, cannot receive that same treatment, those same puberty blockers. How in the world is this not classifying and discriminating on the basis of sex and transgender status? Especially when the Tennessee legislature itself said that one of its key goals was to encourage minors to appreciate the sex that they were assigned at birth. And John Roberts gets around this problem with two basic moves and then a bonus move. So first, he says this does not discriminate on the basis of sex because it only classifies on two grounds, neither of which is suspect. First is age. He says this targets minors, not adults, and that is generally constitutionally permissible. And the second is medical use. He says that, you know, puberty blockers and hormones can be prescribed for a variety of conditions, but not this one subset of conditions involving gender dysphoria and gender incongruence. And he says, based in precedent, that classifications based on age or medical use are subject only to rational basis review. So he gets around the obviously sex based classification by essentially embracing the pretexts that the Tennessee legislature itself adopted in order to get this law to survive in the judiciary. He embraces the fiction that this is only classifying on the basis of relatively neutral grounds and not on the basis of sex, by saying, look, this is just a regulation of medicine. This is just an effort to protect medicine, to protect patients, to ensure that this quote, unquote, experimental treatment does not get out of hand, and that children are only given treatments that are safe and effective and approved by the governing medical authorities. This is not classification on the basis of sex. And again, to say that he has to close his eyes to what is in the law and the way that the law operates. And then he says it also does not discriminate on the basis of transgender status, which is almost impossible to believe because the whole point of this law is to prevent trans people from transitioning. It's to prevent transgender children from transitioning to their gender identity and to force them to remain locked in the sex assigned at birth. But he pulls this kind of like, jujitsu move. He says that these laws are regulating a medical procedure that only one sex can undergo. So he says only boys assigned male at birth can transition to transgender girls, and only girls assigned female at birth can transition to become transgender boys. And so this is not, in fact, targeting them because they are transgender. It is just regulating a particular kind of medical treatment that is limited to one sex or the other sex. If you are scratching your head right now, you should be. I find it hard to articulate this in any kind of persuasive or even coherent way. But that is the move that. That Roberts uses to say that not only is this totally fine under sex discrimination law, but this doesn't even discriminate on the basis of transgender status. And because of all that, this is subject to only the most deferential review, rational basis review. And he says it easily survives rational basis review because it is not rooted in invidious, irrational discrimination, and it is linked to the state's desire to protect children and to regulate the practice of medicine.
- [07:45]
Dahlia Lithwick
Mark, as I mentioned earlier, we spoke on the show with Chase Strangio. He's the ACLU lawyer who actually argued Scrametti, and he warned us at the time that the court's decision in Dobbs had actually played a really pivotal role in this all out legal assault on trans people. Can you just walk us through how that dynamic is at play here?
- [08:10]
Mark Joseph Stern
So Roberts doesn't cite Dobbs in his majority opinion, but Dobbs is all over this in its reasoning. It really lurks just under the page, because in Dobbs, of course, the Supreme Court said that abortion bans are not a kind of sex discrimination. And to get there, it had to say that all kinds of laws targeting pregnancy aren't discriminatory because they only affect people who are pregnant, which is not all women, but only those women who happen to be pregnant. And that crops up here. It really carries over where Robert says this is not targeting transgender people. It's not discriminating on the base of sex. It just affects a subset of both boys and girls who happen to have a particular medical condition that involves sex. And so he doesn't cite Dobbs, but he does cite Good, which was a key decision that the court relied on in Dobbs, which held that discrimination on the basis of pregnancy is not discrimination on the basis of sex. And so Roberts cites Goduldig for the same principle to say that, well, if discriminating on the basis of pregnancy isn't sex discrimination, then discriminating on the basis of a desire to receive a certain medical treatment that may be related to sex isn't sex discrimination either. That is a kind of insidious move and it's key to his reasoning. And so even though he doesn't cite Dobbs, I, I think it's clearly right there under the surface. Roberts also brings out the Dobbs logic in this area of medical uncertainty. He claims that there's a lot of uncertain around these treatments. He claims that the FDA hasn't approved them for this particular reason. And so he says that in the realm of scientific and medical uncertainty, courts have to defer to state legislatures. He doesn't cite Dobbs for that. He cites Gonzalez versus Carhartt, which is an earlier decision that upheld the federal ban on so called partial birth abortion. And so there I think he is pulling the Dobbs card in effect to say, oh, there's uncertainty, there's disagreement. This medical procedure, these medical treatments are controversial, so we just have to throw up our hands and leave it to the state legislative process and the democratic process. Alito and Thomas, in their concurrences, both cite Dobbs outright. They spell out what's implicit for Roberts. But I think that the reasoning across the board for all six conservatives is really foundationally rooted in what the Court said when overturning Roe v. Wade.
- [10:42]
Dahlia Lithwick
Slate plus members can access our conversation in full right now. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and on Spotify, or you can visit slate.com amicusplus to get access wherever you listen. We will be back with your regularly scheduled Amicus episode on Saturday morning. Until then, take good care.